Decision Date: 07/31/95 Archive Date: 01/17/96
DOCKET NO. 93-21 377 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to service connection for residuals of a head
injury.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
M. Hannan, Associate Counsel
INTRODUCTION
The appellant went on active duty for training in November
1979. He was released from active duty for training in March
1980. He was released for marginal or nonproductive
performance. He reportedly was released to the State
National Guard. He was released from the State National
Guard in July 1985.
This matter came before the Board of Veterans’ Appeals
(hereinafter Board) on appeal from a June 1992 rating
decision of the Oakland, California Regional Office
(hereinafter RO) which denied service connection for
residuals of a head injury.
REMAND
The VA has a duty to assist the appellant in the development
of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991). In September 1991 correspondence to the RO the
appellant requested that medical records should be obtained
from specific Department of Veterans Affairs (VA) medical
facilities. The appellant submitted to the RO copies of some
of the medical records associated with his active duty for
training. In September 1991 the RO made a request for copies
of the appellant’s service medical records. The records
forwarded to the RO in response to that request included the
notation that all records had been sent, and that the period
of duty set forth above was active duty for training. A
subsequent request by the RO in April 1992 yielded a dental
x-ray along with a note stating that the appellant’s record
indicated State National Guard service and the suggestion
that the RO contact the Adjutant General of the Louisiana
Guard for other records. The RO also made a request in April
1992 for the VA outpatient treatment records of the appellant
from August 1991 on. No current physical or mental
examination of the appellant was requested by the RO.
The appellant reported treatment at a mental health facility
in Hammond, Louisiana. Contact with that facility resulted
in a reply that they had no record of the patient. The
appellant’s representative has contended that the name of the
treating physician and the method of payment be solicited in
an additional attempt to obtain pertinent records. In view
of the paucity of records showing treatment for the claimed
disorder from 1980-1991, an additional attempt to obtain
these records will be undertaken.
The claims file contains Oakland VA outpatient records for
the period of September 1991 to September 1992. These
records do not contain records from the examination on August
14, 1991 conducted by a VA doctor which the appellant
specifically requested in September 1991 be obtained. The VA
outpatient clinic records in the claims folder are also
missing the back side of some of the progress notes as well
the EEG report. There is a doctor’s note that the MRI report
is not in the chart. The progress notes also contain mention
by the appellant’s primary therapist that the chart is
missing pages. It is also noted in these records that he
filed a claim for benefits with another governmental agency
in December 1991. An attempt to obtain a copy of the
determination made in that claim, as well as any medical
evidence that may have been used, is in order.
The claims file does not contain any of the appellant’s
medical or personnel records associated with his service in
the Louisiana National Guard or the Army Reserve, post March
1980. An attempt to obtain personnel records from the period
of active duty for training should be undertaken.
Additionally, in view of the more recent history that the
appellant has given concerning having lost consciousness for
a period of time, the Base Hospital at Fort Jackson, South
Carolina should be contacted for any available records.
The medical records from the appellant’s entry into active
duty for training, including a physical examination conducted
in July 1979, indicate that he had a history of head injury
and that sunlight hurt his eyes sometimes. The medical
records during his active duty for training in the claims
folder do not contain any mention of a head injury. However,
the medical records associated with his release from active
duty note that he had a hyperopic astigmatism, that his
memory was fair. He reported a head injury in November 1979,
occasional severe headaches, eye trouble, frequent trouble
sleeping, loss of memory and nervous trouble. He also
specifically mentioned an illness or injury in basic
training. It was not indicated, however, that he was
hospitalized for the pathology.
In order to fulfill its statutory duty to assist the
appellant and adequately develop his claim, the Board
believes that further development, as specified below, is
warranted. Accordingly the case is REMANDED for the
following:
1. The RO should obtain, with the
appellant’s assistance as needed, any
medical records in connection with the
appellant’s 1991 Social Security
Administration disability claim, and
associate these with the claims folder.
A copy of any determination made by
Social Security should also be obtained.
2. The RO should obtain any relevant VA
medical reports including the reported
August 1991 examination, the August 14,
1991 to November 1991 outpatient records
and the records from April 1992 to the
present. The missing material for the
period November 1991 to April 1992 should
be obtained, especially the MRI report
from December 1991. These records should
be associated with the claims folders.
It should also be determined whether the
appellant had any additional treatment
from the VA either before or after the
dates listed, if so, those records should
be obtained.
3. The RO should obtain verification of
all periods of duty for training and
whether those were active duty for
training or inactive duty for training,
and obtain the appellant’s service
medical and personnel records from the
Louisiana National Guard and the Army
Reserve. For the National Guard records,
the RO should directly contact the Office
of the Adjutant General in New Orleans,
in addition to any other appropriate
source. These records should be
associated with the claims folder.
4. The RO should contact the appellant
to obtain more information concerning the
head injury which he alleges occurred
during November 1979 while he was
training on an obstacle course as a
member of 76 Delta Company in basic
training at Fort Jackson, South Carolina.
The RO should contact Fort Jackson to see
if any pertinent records are held there.
These records should be associated with
the claims folder.
5. The RO should contact the appellant
to obtain more information about his
mental health treatment or, if
applicable, any substance abuse
treatment, in Louisiana or elsewhere,
including the names of the providers and
the approximate dates of treatment.
Another attempt to obtain relevant
records from the Mental Health Center,
100 Medical Arts Plaza, Hammond, LA 70403
should be accomplished. The name of the
treating physician may be solicited from
the appellant as an alternative source of
information as needed. Additionally, any
pre-duty for training medical records
should be obtained, particularly with
reference to the head injury he reported
on his July 1979 enlistment examination.
Then, after obtaining any necessary
authorization from the veteran, the RO
should request copies of those treatment
records and they should be associated
with the claims folder. If the search
for records results in none being
obtained, the claims folder should
contain documentation of the attempts
made to obtain the records. The
appellant and his representative should
be informed of the negative results.
6. The RO should arrange for
neurological and psychiatric
examination(s) of the appellant in order
to evaluate the etiology and extent of
any neuropsychiatric disorder(s),
including migraine headaches. The
examiner(s) are requested to review the
entire claims folder, and provide a
written opinion as to the etiology and
onset of any neuropsychiatric disorder(s)
found. Specifically, the examiner(s) are
requested to provide an opinion as to the
medical probability that any documented
neurologic or psychiatric disorder is
related to symptoms the appellant may
have had in service as determined by a
review of the medical records on file.
If an acquired neurologic or psychiatric
disorder currently exists, the
examiner(s) are requested to provide an
opinion as to the approximate date of
onset thereof. If the onset date thusly
given is prior to entry into active duty
for training, the examiner should discuss
whether any aggravation of the condition
occurred during active duty for training.
The examiner(s) should identify the
information upon which the requested
opinion(s) are based. The opinion(s)
should adequately summarize the relevant
history and clinical findings, and
provide a detailed explanation as to all
medical conclusions rendered. The
opinion(s) should also allocate the
appellant’s various symptoms and
manifestations to the appropriate
diagnostic entity. If these matters
cannot be medically determined without
resort to mere conjecture, this should be
commented upon by the examiner(s).
In order to avoid undue delay in this case, the RO should
make certain that the instructions contained in this REMAND
decision, detailing the requested development, have in fact
been substantially complied with. When this development has
been completed, and if the benefits sought are not granted,
the case should be returned to the Board for further
appellate consideration, after compliance with appropriate
appellate procedures, including issuance of a supplemental
statement of the case. It is requested that these statements
specifically set forth the reasons and bases for the
decision. No action by the appellant is required until he
receives further notice. The Board intimates no opinion,
either legal or factual, as to the ultimate disposition
warranted in this case, pending completion of the requested
development.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1994).
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